1
URNr. 3037 /1997
SHAREHOLDERS' AGREEMENT
Today, on this fourth day of November nineteen
hundred and ninety seven
- 04.11.1997 -
there appeared
before me,
Dr. ▇▇▇▇▇▇ ▇▇▇▇
notary public in Munich, at the offices of Bayerische
Kapitalbeteiligungsgesellschaft mbH at ▇▇▇▇▇▇▇▇▇▇ ▇,
▇▇▇▇▇ ▇▇▇▇▇▇, where I have come at the request of
the appearing persons:
1. Mr. ▇▇▇▇▇▇ ▇▇▇▇▇
businessman
born on May 11, 1965,
business address: ▇▇▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇▇▇▇▇▇,
identified by his German Federal Identity Card,
acting not at his own behalf but under power of attorney
dated October 31, 1997 (which was presented in the
original and a copy of which is attached hereto) on
behalf of
BAYERISCHE KAPITALBETEILIGUNGSGESELLSCHAFT MBH with its
seat in Munich (commercial register Munich HRB 41723)
and its business address at ▇▇▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇
▇▇▇▇▇▇
- hereinafter: "KBG" -
2. ▇▇. ▇▇▇▇ ▇. ▇▇▇▇▇▇
businessman
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SHAREHOLDERS' AGREEMENT 2
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born on August 12, 1959,
business address: ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇,
U.S.A.,
identified by his US Passport,
acting not on his own behalf but in his capacity as
Vice President and Chief Financial Officer with
individual powers of representation for WABASH NATIONAL
CORPORATION, a corporation under the laws of Delaware
with its seat in Lafayette and its business address at
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇.▇.▇.
- hereinafter: "WABASH" -,
and
3. ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇,
businessman,
born on March 25, 1950,
identified by his German
Federal Identity Card,
business address: ▇▇▇▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇▇▇▇▇▇,
acting not on his own behalf but
a. in his capacity as the sole managing director of ETZ
EUROPAISCHE TRAILERZUG BETEILIGUNGSGESLLSCHAFT MBH with its seat in
Munich (commercial register Munich HRB 106942) and its business address
at ▇▇▇▇▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇▇▇▇▇▇, and
b. in his capacity as the sole managing director of BTZ
BAYERISCHE TRAILERZUG GESELLSCHAFT FUR BIMODALEN GUTERVERKEHR MBH with
its seat in Munich (commercial register Munich HRB 97439) and its
business address at ▇▇▇▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇▇▇▇▇▇
Upon request by the appearing persons, acting as indicated above, l
record according to their declarations the following:
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SHAREHOLDERS AGREEMENT:
PREAMBLE
Whereas, KBG currently owns 100% of the issued and
outstanding share capital in ETZ Europaische Trailerzug
Beteiligungsgesellschaft mbH (the "Company"), a limited
liability company organized under the laws of Germany.
Whereas, WABASH intends to take over newly issued shares
equaling 25.1% of the issued and outstanding share
capital in the Company.
Whereas, the Company owns 99.89% of the issued and
outstanding share capital in BTZ Bayerische Trailerzug
Gesellschaft fur bimodalen Guterverkehr mbH ("BTZ"), a
limited liability company organized under the laws of
Germany;
Whereas, BTZ owns 99% and is the beneficial owner of
another 1% of the issued and outstanding share capital in
BTZ Italia S.r.L. ("BTZ Italia"), a limited liability
company organized under the laws of Italy, and BTZ
further owns 100% of the issued and outstanding share
capital in RM 37 Vermogensverwaltung GmbH ("RMV"), a
limited liability company organized under the laws of
Germany;
Whereas, the Company has currently no direct or indirect
subsidiaries other than BTZ, BTZ Italia and RMV (herein
referred to as the "Subsidiaries");
Whereas, KBG made available to the Company silent partner
equity contributions in the total amount of DM 9 million
and a bridge loan (the "Bridge Loan") in the amount of
DM 4.0 million and KBG has made available to BTZ a
guaranty in the amount of DM 2 million for operative
loans;
Whereas, KBG and WABASH believe that it is in their
respective best interest to make provisions for matters
relating to KBG's and WABASH's joint participation in the
Company and to certain aspects of the Company's and its
Subsidiaries' business;
Now, therefore, KBG and WABASH (the "Shareholders")
hereby agree as follows:
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Section 1
CAPITALIZATION OF THE COMPANY
1.1 INITIAL CAPITAL STRUCTURE AND OWNERSHIP
The Company is a limited liability company established and existing
under the laws of Germany and registered with the Commercial Register of the
Amtsgericht Munich under No. HRB 106942. The Company has a nominal share
capital ("Stammkapital") of DM 13,000,000.- which has been fully paid in cash.
1.2 SHARE QUOTAS
KBG currently owns 100% of the issued and outstanding share capital of
the Company by owning share quotas ("Geschaftsanteile") with a total nominal
value of DM 13,000,000.-. KBG will have the Company issue to WABASH and WABASH
will take over, by duly notarized declaration, a share quota in the nominal
amount of DM 4,357,000.- equaling 25.1 % of the Company's nominal share capital
of then DM 17,357,000.-.
1.3 PREMIUM
The new share quota referenced in Section 1.2 shall be issued to
WABASH at nominal value plus a premium in the amount of DM 5,983,454.- out of
which DM 3,490,254.- will be paid in cash and the remaining amount of which
(i.e. DM 2,493,200.-) will be effected according to a separate agreement among
WABASH, the Company and BTZ.
1.4 CONVERSION OF SILENT PARTNERSHIP AND BRIDGE LOAN
KGB has, by duly effected shareholder resolution, converted its claims
under the silent partnership agreement up to the amount of DM 9,000,000 and the
principal of the Bridge Loan in the amount of DM 4,000,000.- into capital
reserves (Rucklagen) of the Company.
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1.5 FUTURE CAPITAL REQUIREMENTS OF THE COMPANY.
If the management of the Company reasonably determines that the Company
or any of its current subsidiaries or subsidiaries it may have in the future
(together: the "Subsidiaries") is in need of additional funds which cannot be
obtained through bank financing at satisfactory conditions, and the
shareholders shall not have agreed on an increase of the nominal share capital
of the Company with the majority required by statute (at least 75 % of the
votes cast) within four weeks of delivery of a written notice by KBG of KBG's
intent to effect such increase, then KBG shall be entitled to cause the Company
to enter into a shareholder loan agreement with KBG, provided that (i) the
conditions of the loan must conform to arm's length standards and (ii) WABASH
must consent to the terms and conditions of the loan in writing, which consent
may not be unreasonably withheld and which consent shall be deemed to be
granted if the interest rate does not exceed the applicable 6 month LIBOR rate
on the last business day of the week preceding WABASH's receipt of the
afore-mentioned notice plus 6 percentage points, and provided further that
WABASH shall in any event be entitled to participate in the shareholder loan at
equal conditions in an amount proportional to its nominal interest in the
Company.
1.6 DIVIDENDS
The Shareholders will resolve on payments of dividends of the Company
and its Subsidiaries in accordance with applicable statutory law and the
Articles of Association as to be amended on the date hereof(the "Modified
Articles of Association"). The Company shall accumulate earnings only to the
extent reasonably required to finance the capital expenditures of the Company
and its Subsidiaries (including future growth in accordance with the relevant
business plans).
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Section 2
ARTICLES OF ASSOCIATION
The Shareholders will amend the Articles of Association on the date
hereof. The Shareholders shall, in the relation inter se, be bound by the
Articles of Association, as amended, as of the date thereof. In the relation of
the Shareholders inter se, the English text of the Articles of Association
shall take precedence over the German text. Furthermore, the parties undertake
to cause the Company to amend the Articles of Association of BTZ substantially
in accordance with the Articles of Association of the Company, as to be
amended.
SECTION 3
BUSINESS PLANS AND BUDGETS
3.1 ANNUAL BUSINESS PLANS AND BUDGETS
On or before October 31 of each year (however, for the the 1998 budget:
November 30, 1997), commencing with the year in which this Agreement is
executed, the Managing Board ("Geschaftsfuhrung") of the Company shall submit
for approval to the Supervisory Board ("Beirat") an annual business plan (the
"Annual Business Plan") and budget (the "Budget") for the entire operation of
the Company and its Subsidiaries for the following year which shall include all
expected revenues and expenditures for such periods and general strategic plans
for such periods. On or prior to November 30 of each year (however, for the
1998 budget: December 31, 1997), the Supervisory Board shall adopt, in amended
form, if it is deemed appropriate, the Annual Business Plan and Budget. Such
adoption of the Annual Business Plan and Budget requires a resolution of the
Supervisory Board with a majority of 75% of the votes cast.
Section 4
REPRESENTATIONS AND WARRANTIES
4.1 REPRESENTATIONS AND WARRANTIES OF KBG
KBG hereby represents and warrants to WABASH that (a) neither the
execution and delivery of this Agreement by KBG nor KBG's performance of or
compliance with its
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obligations hereunder constitutes or in the future will constitute a
breach or other violation of any agreement, contract or other commitment to
which KBG is a party or by which it or any significant part of its assets is or
in the future will be bound, and (b) neither KBG nor any of its subsidiaries is
or in the future will become a party to or subject to any agreement, contract
or other commitment which would hinder or interfere in any material respect
with KBG's ability to comply in all material respects with all of its duties
and obligations hereunder or its ability to afford WABASH the full benefit of
the cooperation contemplated by this Agreement.
4.2 REPRESENTATIONS AND WARRANTIES OF WABASH
WABASH hereby represents and warrants to KBG that (a) neither the execution and
delivery of this Agreement by WABASH nor WABASH's performance of or compliance
with its obligations hereunder constitutes or in the future will constitute a
breach or other violation of any agreement, contract or other commitment to
which WABASH is a party or by which it or any significant part of its assets is
or in the future will be bound, and (b) neither WABASH nor any of its
subsidiaries is or in the future will become a party to or subject to any
agreement, contract or other commitment which would hinder or interfere in any
material respect with WABASH's ability to comply in all material respects with
all of its duties and obligations hereunder or its ability to afford KBG the
full benefit of the cooperation contemplated by this Agreement.
Section 5
OBLIGATION TO SELL
If any third party (other than a party controlling, controlled by,
under common control with or otherwise affiliated with KBG) submits a binding
offer for the acquisition of 100% of the shares in the Company, KBG may,
without prejudice to WABASH's preemptive rights under the Articles of
Association, request that WABASH transfer all of its shares in the Company to
such third party at conditions equal to the conditions offered by the third
party to KBG. If the sale of WABASH's share to the third party would, in the
reasonable opinion of WABASH, impair the Company's or any of its Subsidiaries'
ability to meet its / their financial obligations, then WABASH shall be obliged
to sell only if
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KBG agrees to guarantee any obligations of the Company and its
Subsidiaries to WABASH which have arisen prior to such sale.
Section 6
GOING - PUBLIC
If KBG should decide to convert the Company into a stock corporation
(Aktiengesellschaft),and to have the stock of the Company listed as bearer
stock (Inhaberaktien) on a stock exchange, Wabash shall be obliged to vote its
shares in the Company accordingly (which includes the Amendment of the Articles
of Association to the extent necessary to comply with the mandatory provisions
of the Stock Corporations Act / Aktiengesetz), and to agree to such reasonable
and customary restrictions on sale of its stock as are reasonably required by
an independent underwriter engaged by KBG to prepare the admission of the stock
of the Company for trade over the stock exchange (provided that the
restrictions must equal the restrictions imposed on KBG). Until the day when
the stock of the Company is first quoted on a stock exchange, (i) KBG shall be
obliged to vote its stock in the Company to permit that all rights WABASH has
as a minority GmbH shareholder in the Company and its Subsidiaries shall remain
in full effect after the conversion into a stock corporation, and (ii) WABASH's
obligations with regard to its GmbH shares under Section 5 hereof as well as
any restrictions on transfer and preemptive rights of either party as set forth
in Section 11 of the Articles of Association shall remain in full effect.
Section 7
TERMINATION
This Agreement may be terminated by written notice of either Shareholder in the
event that: (i) the other Shareholder commits a material breach of this
Agreement; or (ii) the other Shareholder shall apply for or consent to the
appointment of a receiver, trustee, custodian or liquidator of any of its
property, admit in writing its inability to pay its debts as they mature, make
a general assignment for the benefit of creditors, be adjudicated a bankrupt or
insolvent under applicable law, or if an order or decree shall be entered by
any court of competent jurisdiction approving a petition seeking
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reorganization of the other Shareholder and such order or decree shall
continue in effect for any period of sixty (60) days.Upon termination of this
Agreement, this Agreement shall be void and of no further force or effect,
provided, however, that (i) such termination shall not result in the
termination of the provisions of Sections 1.5 (only in favor of the
non-breaching party), 4, 8 and 9 of this Agreement, which shall continue in
full force and effect and (ii) such termination shall not relieve any
Shareholder from liability for any prior breach of this Agreement.
Section 8
ARBITRATION, GOVERNING LAW
8.1 ARBITRATION
Any dispute, difference, controversy or claim between the Shareholders
arising in connection with or relating to this Agreement shall be finally
resolved by arbitration in accordance with the Rules of Conciliation and
Arbitration of the International Chamber of Commerce (the "ICC"). Any such
arbitration proceedings shall be held in Paris, France. The arbitration
proceedings shall be conducted, and the award shall be rendered, in the English
language. The Shareholder initiating recourse to arbitration shall be treated
as the claimant party in the arbitration and the Shareholder against whom such
recourse is so initiated shall be treated as the defendant party in such
arbitration. There shall be three arbitrators, of whom one shall be nominated
by such claimant party and one shall be nominated by such defendant party, in
accordance with the ICC Rules i and within 14 days of commencement of the
proceedings. Unless within 30 days after both such nominations have been
effected the two arbitrators so nominated shall fail to agree upon the third
arbitrator, the third arbitrator shall be appointed by the Court of Arbitration
of the ICC. Among other remedies otherwise available to them, such arbitrators
shall be autorized to order the specific performance of any provisions
contained herein. Any award rendered by the arbitrators shall be final and
binding upon the Shareholder, and judgment upon such award, including any costs
of arbitration, may be entered in accordance with applicable law in any court
having jurisdiction thereof; provided, however, that, save as aforesaid, all
rights of appeal or recourse to any court of law whatsoever are hereby excluded
in relation to any arbitration or any award made
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therein. The Shareholders recognize and acknowledge that this Agreement
constitutes a commercial transaction, and that no Shareholder hereto shall be
entitled to plead sovereign immunity in respect of any arbitration or award
thereunder, or of its enforcement or execution in any jurisdiction.
8.2 GOVERNING LAW
This Agreement shall be governed by and interpreted in accordance with
the laws of Germany without giving effect to the rules on conflict of laws.
Section 9
MISCELLANEOUS
9.1 NOTICES; DOCUMENTS
All notices and other communications under this Agreement shall be in
writing (except where statutory provisions require notarization) in the English
language and shall be given or made (and shall be deemed to have been duly
given or made) by delivery in person, by overnight courier service, by telecopy
or by registered or certified mail (postage prepaid, return receipt requested)
to the respective Sharerholders at the following addresses:
if to KBG:
Bayerische Kapitalbeteiligungsgesellschaft mbH
▇▇▇▇▇▇▇▇▇▇ ▇
▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇
Tel: ▇▇▇ ▇▇ ▇▇ ▇▇ ▇▇ - OFax: ▇▇▇ ▇▇ ▇▇ ▇▇ ▇▇ ▇▇
Attention: Geschaftsfuhrung
if to WABASH:
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WABASH National Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇
Tel: + ▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Fax: ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Attention: Chief Financial Officer
9.2 CONFIDENTIALITY
Each Shareholder shall treat confidentially in accordance with the
terms of this Section 9.2 all information provided to it by or on behalf of any
other Shareholder relating to the business and operations of such other
Shareholder and all correspondence among the Shareholders relating to this
Agreement or the transactions contemplated hereby, including the terms and
conditions hereof ("Confidential information"). Confidential information does
not include information (i) already available to the recipient party on a
non-confidential basis, (ii) that becomes generally available to the public
other than as a result of a disclosure by or on behalf of the recipient party
in violation of the terms of this Section 9.2, or (iii) that becomes available
to the recipient party on a nonconfidential basis from a source that is not a
party hereto, provided that such source is not known by the recipient to be
legally prohibited from, or contractually bound not to, disclose such
information.
9.3 NON-DISCLOSURE
Subject to Section 9.2 and 9.3, the Shareholders agree that any
Confidential Information received by it will not be disclosed by it except (i)
to such Shareholder's agents being under duties of confidentiality for the
benefit of the other Shareholder under applicable professional rules of conduct
and advisors and counsel having a need to know such information in connection
with advising or representing such Shareholder in respect of this Agreement and
the matters contemplated ▇▇▇▇▇, (ii) with the prior written consent of the
Shareholder to whom such information pertains, (iii) in
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connection with the exercise of its rights or remedies under or
relating to this Agreement, or (iv) as required by applicable law or competent
judicial or governmental authority or in accordance with the applicable rules
of any stock exchange, including, without limitation, the U.S. Securities and
Exchange Commission and The New York Stock Exchange; provided, however, that in
the event that any Shareholder shall be required to make any disclosure of
Confidential Information as contemplated in this clause (iv), it shall to the
extent practicable (A) provide prior notice thereof to the Shareholder to whom
such information pertains, (B) only disclose such portions of Confidential
Information as, in the opinion of its counsel, shall be required to be
disclosed under the circumstances and (C), to the extent practicable,
reasonable and permitted, request confidential treatment for such disclosed
information.
9.4 INVESTMENT AGREEMENT
WABASH, KBG, the Company and BTZ hereby enter into an Investment
Agreement with the contents of the EXHIBIT.
9.5 SEVERABILITY
If any provision of this Agreement should be invalid or ineffective,
the validity of the remaining provisions hereof shall not be affected thereby.
The invalid or ineffective provisions shall be deemed to the replaced by such
valid and effective provision as most closely corresponds to the economic
purpose and substantive effect of the invalid or ineffective provision. The
same applies mutatis mutandis with regard to supplementary interpretation of
this Agreement.
9.6 ENTIRE AGREEMENT; NO THIRD PARTY BENEFICIARIES
This Agreement (including the documents and instruments referred to
herein) constitutes the entire agreement between the Shareholders with respect
to the subject matter hereof and supersedes all prior agreements and
undertakings, both written and oral, between the Shareholders with respect to
the subject matter hereof. This Agreement is for the sole benefit of the
Shareholders and their permitted assigns and nothing herein express or implied
shall give to any other person any legal entitlements.
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9.7 Costs
The notarization fees for this Agreement shall be split equally among
KBG and Wabash.
Read (including the Exhibit) to the appearing persons in the presence
of the Notary, approved by the appearing persons and signed by them and by the
Notary as follows:
[SIG]
[SIG]
[SIG] [SIG]
[NOTARY SEAL]
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INVESTMENT AGREEMENT
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By and Among
WABASH NATIONAL CORPORATION
BAYERISCHE KAPITALBETEILIGUNGSGESELLSCHAFT MBH
ETZ EUROPAISCHE TRAILERZUG
BETEILIGUNGSGESELLSCHAFT MBH
and
BTZ BAYERISCHE TRAILERZUG GESELLSCHAFT
FUR BIMODALEN GUTERVERKEHR MBH
November 4, 1997
================================================================================
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INVESTMENT AGREEMENT, dated November 4, 1997, (the "Agreement") among
WABASH NATIONAL CORPORATION ("WABASH"), a corporation organized under the laws
of Delaware, USA, BAYERISCHE KAPITALBETEILIGUNGSGESELLSCHAFT MBH ("KBG"), a
limited liability company organized under the laws of Germany, ETZ EUROPAISCHE
TRAILERZUG BETEILIGUNGSGESELLSCHAFT MBH (THE "COMPANY"), a limited liability
company organized under THE LAWS OF GERMANY and BTZ BAYERISCHE TRAILERZUG
GESELLSCHAFT FUR BIMODALEN GUTERVERKEHR MBH ("BTZ"), a limited liability
company organized under the laws of Germany. WABASH, KBG, the Company and BTZ
are sometimes each referred to herein as a "Party" and collectively as the
"Parties".
W I T N E S S E T H:
WHEREAS, KBG currently owns one hundred per cent (100%) of the issued and
outstanding share capital of the Company.
WHEREAS, the Company owns approximately ninety-nine point eighty-nine per
cent (99.89%) of the issued and outstanding share capital in BTZ.
WHEREAS, BTZ owns ninety-nine per cent (99%) and is the beneficial owner
of another per cent (1%) of the issued and outstanding share capital in BTZ
Italia S.r.L. ("BTZ Italia"), a limited liability company organized under the
LAWS of Italy, and BTZ further owns one hundred per cent (100%) of the issued
and outstanding share capital in RM 37 Vermogensverwaltung GmbH ("RM37), a
limited liability company organized under the laws of Germany.
WHEREAS, the Company has currently no direct or indirect subsidiaries
other than BTZ, BTZ Italia and RM37 (herein referred to as the
"Subsidiaries").
WHEREAS, KBG has made available to the Company silent partner equity
contributions in the amount of DM 9,000,000, bridge loans in the aggregate
amount of DM 4,000,000 and a guaranty in the amount of DM 2,000,000 for
operative loans.
WHEREAS, KBG has converted (i) its silent partners equity contributions
in the amount of DM 9,000,000 and (ii) the principal amount of the loans in the
aggregate amount of DM 4,000,000 made available to the Company into capital
reserves of the Company by duly effected agreement between KBG and the
Company.
WHEREAS, KBG and WABASH held discussions related to
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their future cooperation as shareholders of the Company and have agreed on a
modification of the Articles of Association ("Satzung") of the Company and
accordingly also of BTZ (the "Modified Articles of Association"), and on the
terms and provisions of a shareholders agreement entered into between KBG and
WABASH as shareholders in the Company (the "Shareholders Agreement").
WHEREAS, the Parties hereto desire that the investment of WABASH in the
Company described in this Agreement shall become effective only upon the valid
execution of the Shareholders Agreement.
WHEREAS, the Parties hereto have received on October 31, 1997 a
confirmation by the German cartel authorities ("Bundeskartellamt") that the
transactions contemplated hereby have been cleared and that no further cartel
or any other governmental approvals will be required.
NOW, THEREFORE, for and in consideration of the mutual representations,
warranties, covenants and agreements contained herein, and intending to be
legally bound hereby, the Parties hereto agree as follows:
ARTICLE I
AUTHORIZATION, SUBSCRIPTION AND PURCHASE
OF SHARE QUOTA
Section I.1 Capital Increase. (a) On the date hereof, the Company will
hold a Shareholders' Meeting ("Gesellschafterversammlung") of the Company and
approve (i) the increase of the nominal share capital of the Company from DM
13,000,000 to DM 17,357,000 by issuing to WABASH one new share quota
("Geschaftsanteil") with a total aggregate nominal value of DM 4,357,000 (the
"New Share Quota"), (ii) the issuance of the New Share Quota, constituting,
when issued and paid for, 25.1% of the then outstanding and fully paid-up
nominal share capital of the Company, (iii) the issuance of the New Share
Quota to WABASH at the total issue price of DM 10,340,454 (the "Issue Price"),
and (iv) the amendment to the Company's Articles of Association to reflect
such capital increase and to implement all terms and provisions as set forth
in the Modified Articles of Association.
(b) In connection with the issuance of the New Share Quota, KBG hereby
waives its preemptive rights ("Bezugsrechte") to subscribe for the New Share
Quota to be issued. No consideration in addition to the Issue Price shall be
payable by
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WABASH in connection with such waiver.
Section I.2 Issuance of New Share Quota to WABASH. Immediately after
the Company has held the Shareholders' Meeting and approved the resolutions
mentioned in Section 1.1 (a), the Company will deliver to WABASH a copy of the
resolution of the Company's Shareholders' Meeting regarding the increase of the
nominal share capital, the issuance of the New Share Quota to WABASH, and the
amendment of the Articles of Association as described in Section 1.1 hereof.
Immediately after receipt of such documents by WABASH, WABASH will subscribe to
and purchase the New Share Quota at the Issue Price. The Company and WABASH
will execute all corporate and other documents including, without limitation, a
statement of subscription ("Obernahmeerklarung") in the form of a notarial
deed, necessary to complete the issuance and purchase of the New Share Quota
and the transactions described herein. The statement of subscription shall
record WABASH's status as a shareholder of the Company
("Gesellschaftsbeitritt"). WABASH will pay via wire transfer an amount of DM
4,357,000 (the Nominal Issue Price") to the Company's account No.: 58355 at
Bayerische Landesbank, BLZ 700 500 00 and an amount of DM 3,490,254 (the
"Surplus Issue Price") to the joint account of KBG and WABASH (the "Joint
KBG/WABASH Account"), account no.:▇▇▇▇▇▇▇ at First Chicago Frankfurt. Payment of
the remaining amount of DM 2,493,200 will be effected according to a separate
agreement to be entered into between Wabash, the Company and BTZ. The Company
agrees to file the resolution on the increase of the nominal share capital,
together with all other documents necessary to register the increase of the
Company's nominal share capital and the transactions described herein with the
Commercial Register in Munich ("Handelsregister") as soon as the increase in
the nominal share capital and payment for the New Share Quota have been
effected.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF
KBG AND THE COMPANY
Section 2.1 KBG and the Company each severally represent and warrant to
WABASH as follows:
Section 2.1.1 Corporate Organization and Qualification. The Company is a
company duly organized and validly existing under the laws of Germany. BTZ is
a 99.89% subsidiary of the Company and a company duly organized and validly
existing under the laws of Germany. BTZ Italia S.r.L.
18
is a subsidiary of BTZ and a company duly organized and validly existing under
the laws of Italy. RM37 is a 100% subsidiary of BTZ and a company duly
organized and validly existing under the laws of Germany. The Company and the
Subsidiaries have the requisite corporate power and authority to own, lease
and operate their properties and assets, and to carry on their business and
all other activities in which they are engaged as such have been and are now
being conducted.
Section 2.1.2 Authorized Capital. As of the date hereof, the authorized,
issued and outstanding share capital of the Company has a total nominal value
of DM 13,000,000 and has been validly issued, fully paid and is nonassessable.
There are no rights, options, warrants, commitments, agreements or
understandings of any kind to which the Company is a party or by which it is
bound obligating the Company to issue or sell additional share quotas or
obligating the Company to grant or enter into any such right, option, warrant,
commitment, agreement or understanding. The Company has not entered into any
obligations to repurchase, redeem or otherwise acquire any share quotas of the
Company.
Section 2.1.3 New Share Quota. The New Share Quota, when issued in
compliance with the provisions of this Agreement, will be duly authorized and
validly issued. Except for the preemptive rights waived pursuant to Section
1.1 (b) hereof, the issuance of the Share Quota is not subject to any other
preemptive or subscription rights or rights of first refusal or similar
rights. Upon subscription for the New Share Quota, WABASH will receive legal
and valid title to such New Share Quota, free and clear of all encumbrances,
liens, claims or other adverse interests. Except for the transfer restrictions
contained in the Modified Articles of Association of the Company to be enacted
and in the Shareholders Agreement entered into between KBG and WABASH the New
Share Quota will be freely transferable.
Section 2.1.4 Corporate Authority. The Company has all necessary power,
corporate and otherwise, and authority to enter into this Agreement, to
perform its obligations hereunder and to consummate the transactions
contemplated hereby. The execution and delivery of this Agreement by the
Company, the performance by the Company of its obligations hereunder and the
consummation by the Company of the transactions contemplated hereby have been
duly authorized by all requisite action on the part of the Company. This
Agreement constitutes a legal, valid and binding agreement of the Company
enforceable against the Company in accordance with its terms.
19
Section 2.1.5 No Conflict. The execution and delivery of this Agreement
by the Company do not, and the performance by the Company of its obligations
hereunder and the consummation by the Company of the transactions contemplated
hereby will not, (a) conflict with or result in the violation of any provision
of the Articles of Association of the Company or of any law, regulation,
governmental, regulatory, administrative or court order, judgment, decree or
other ruling, decision or authorization applicable to the Company, including
any permits and licenses, or (b) conflict with, result in any violation of or
default (with or without notice or lapse of time or both) under, or give rise
to any right of termination, cancellation or acceleration of any right or
obligation or to a loss of any benefit under, any contract, agreement,
license, permit, franchise, concession or other instrument to which the
Company is a party or by which it is bound, other than any such conflicts,
violations, defaults, terminations, cancellations, accelerations or losses
that, individually or in the aggregate, could not reasonably be expected to
have a material adverse effect on the financial condition, properties,
business, results of operations or prospects of the Company (each, a "Material
Adverse Effect") or would not have a material and adverse effect on the
Company's ability to consummate the transactions contemplated hereby or to
perform its obligations hereunder.
Section 2.1.6 Governmental Consents and Approvals.
The execution and delivery of this Agreement by the Company, the performance
by the Company of its obligations hereunder and the consummation by the Company
of the transactions contemplated hereby do not and will not, require any
consent, approval, authorization, license, permit or other order of, action by,
filing with or notification to, any court or governmental, regulatory or
administrative authority. The Parties have received on October 31, 1997 a
confirmation by the German cartel authorities ("Bundeskartellamt") that the
transactions contemplated hereby have been cleared and that no further cartel
approvals will be required.
Section 2.2 The Company represents and warrants to WABASH, and KBG, to
the best of its knowledge after due inquiry, represents and warrants to WABASH
as follows:
Section 2.2.1 Financial Information. The Company has delivered to WABASH
true and complete copies of the unaudited balance sheets of the Company as at
December 31, 1995 and 1996, and the related profit and loss accounts for each
of the two fiscal years ended December 31, 1995 and 1996, (collectively
referred to herein as the "ETZ - Fi-
20
nancial Statements"). The 1996 ETZ-Financial Statements, however, did not
reflect the year-end accruals and the Company and KBG hereby represent and
warrant that the omission of such year-end accruals will not have any Material
Adverse Effect as defined herein. The Company, further, has delivered to
WABASH true and complete copies of the audited balance sheets of BTZ as at
December 31, 1995 and 1996, and the related profit and loss accounts for each
of the two fiscal years ended December 31, 1995 and 1996, together with all
related notes and schedules thereto, accompanied by the reports thereon of
BTZ's accountants (collectively referred to herein as the "BTZ-Financial
Statements"). The Company, further, has delivered to WABASH true and complete
copies of the unaudited interim financial statements of BTZ as at June 30,
1996 (the "BTZ-Interim Financial Statements"). The ETZ -Financial Statements,
the BTZ - Financial Statements and the BTZ - Interim Financial Statements are
herein referred to as the "Financial Statements". The Financial Statements
have been prepared in accordance with the German Generally Accepted Accounting
Principles applied on a consistent basis throughout the periods involved, and
present fairly the financial condition and results of operations of the
Company and its Subsidiaries as of the dates thereof and for the periods
covered thereby.
KBG, ETZ and BTZ will use their best efforts to procure that the ETZ -
Financial Statements for the years ended December 31, 1995 and 1996 will be
audited as soon as possible, in any event, however, no later than December 31,
1997. Each of KBG, ETZ and BTZ hereby represents and warrants that the Company
did not have any material business relationships (which would need to be
reflected in the Company s audited financial statements (including the notes
thereto)) with any companies other than KBG and BTZ.
The representations and warranties of KBG under the preceding sentence
shall expire upon presentation to WABASH of audited financial statements of
the Company for the years ended at December 31, 1995 and 1996, audited and
certified without any limitation (,,uneingeschranktes Testat") by an
independent outside auditor, as being in accordance with German Generally
Accepted Accounting Standards, to the extent that such accounts show that the
Company did not have any material business relationships (which would need to
be reflected in the Company's audited financial statements including the notes
thereto) with any companies other than KBG and BTZ. Upon expiry of the above
mentioned unrestricted representations and warranties given by KBG, KBG, as to
its best knowledge after due inquiry, represents and warrants to WABASH that
the Company did not have any material business
21
relationships (which would need to be reflected in the Company's financial
statements (including the notes thereto)) with any companies other than KBG and
BTZ.
KBG, the Company and BTZ will use their best efforts to procure that
monthly financial statements of the Company and BTZ will, on a engaging basis,
be delivered as soon as possible to WABASH.
Section 2.2.2 No Undisclosed Liabilities. As of January 1, 1997, there
were no liabilities or obligations, whether absolute, accrued, contingent or
otherwise, of the Company or its Subsidiaries, of a nature which should have
been disclosed in the Financial Statements under German Generally Accepted
Accounting Principles, that have had or could reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect, other than as
reflected or reserved against in the Financial Statements.
Section 2.2.3 Conduct in the Ordinary Course; No Material Adverse
Change. Since January 1, 1997 the Company and its Subsidiaries have conducted
their business only in, and have not engaged in any material transaction other
than according to, the ordinary and usual course of such business and in a
manner consistent with past practice and there has not been (a) any event of
change which, individually or in the aggregate, have had or could reasonably
be expected to have a Material Adverse Effect; (b) any declaration, setting
aside or payment of any dividend or other distribution with respect to the
existing share quotas of the Company or its Subsidiaries; (c) any material
change by the Company or its Subsidiaries in accounting principles, practices
or methods; or (d) any event of default under or breach of (or any event which,
with the giving of notice or lapse of time or both, would be an event of
default or breach of) any credit, financing or other banking agreement or any
finance or operating lease, except where such event of default or breach is not
reasonably expected to have a Material Adverse Effect.
Section 2.2.4 Actions or Proceedings. Except to the extent disclosed in
the Financial Statements or listed in Schedule 2.2.4 hereto, there is no action,
suit, or other proceeding pending against, or to the knowledge of the senior
executives of the Company and the Subsidiaries after reasonable inquiry,
threatened against or affecting the Company or its Subsidiaries before any
court or arbitrator or any governmental, regulatory or administrative authority
which, individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect or to adversely affect the performance of the
obligations of the Company hereunder or the consummation of the transactions
contem-
22
plated hereby.
Section 2.2.5 Compliance with Laws; Permits. The Company and its
Subsidiaries have complied, and are in compliance with all applicable laws,
regulations, permits, licenses, authorizations or orders (including any of the
foregoing relating to employment, labor matters, health, safety or the
protection of the environment) of any court or any governmental, regulatory or
administrative authority, where the failure to so comply has had or could
reasonably be expected to have a Material Adverse Effect. The Company and its
Subsidiaries hold in full force and effect all environmental, hazardous
material, health, safety, operating and other permits, licenses and other
authorizations of all courts or governmental, regulatory or administrative
authorities necessary or proper for the use and operation of the assets owned,
used or operated by it and for the conduct of its business, the absence of
which, individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect.
Section 2.2.6 Material Contracts. The Company has delivered or made
available to WABASH for review, true and correct copies or accurate and
complete written descriptions of the terms and provisions of all contracts and
agreements entered into by the Company and its Subsidiaries with their
shareholders or third parties, the cancellation or termination of which could
reasonably be expected to have a Material Adverse Effect. All such contracts
and agreements are, and on consummation of the transactions contemplated hereby
will remain, in full force and effect and the Company and its Subsidiaries are
not in breach of, or in default under, any such contract or agreement, and no
condition exists which but for the giving of notice or the passage of time
would result in a breach or default of any such contract or agreement.
Reference is made to the Management Disclosure Letter attached hereto
as Schedule 2.2.6.
Section 2.2.7 Taxes. All Tax Liabilities (as defined below) of the
Company and its Subsidiaries have been paid when and as due, except and to the
extent the Financial Statements contain sufficient provisions therefor. The
corporate income tax return of the Company and its Subsidiaries have not been
audited by the fiscal authorities. Such returns comply with all applicable laws
and regulations, other than noncompliances that, individually or in the
aggregate, could not reasonably be expected to have a Material Adverse Effect.
For purposes of this Section, the term "Tax Liabilities" means all liabilities
in respect of any and all
23
kinds of taxes (including, without limitation, income tax, corporate
tax, wealth and municipal taxes, transfer taxes of all kinds), levies, fees
(including, without limitation, social charges and other wage or salary related
duties), imposts or charges of any kind whatsoever, to be paid by the Company
or any of its Subsidiaries.
Section 2.2.8 Title and Related Matters. The Company and its
Subsidiaries have title to (i) all of their respective real and personal
properties and other assets, except as disclosed in Schedule 2.2.6, free and
clear of all title defects or encumbrances of any nature whatsoever and are
not, in the case of real property, subject to any rights of way, covenants,
conditions or building use restrictions, exceptions, variances, reservations or
limitations of any nature whatsoever that could materially limit the use of
such property as currently used; and (ii) the fixed and current assets owned or
leased by the Company and its Subsidiaries include all rights, properties and
other assets necessary to permit the Company and its Subsidiaries to conduct
business in all material respects in the same manner as their businesses have
been conducted prior to the date hereof. The only real property owned by the
Company or its Subsidiaries is set forth on Schedule 2.2.8 hereto.
Section 2.2.9 Insurance. All the assets of the Company and its
Subsidiaries of an insurable nature are adequately insured for all risks,
insured against by enterprises carrying on the same classes of business.
All policies of insurance taken out in connection with the assets of
the Company and its Subsidiaries are written in the name of the Company and its
Subsidiaries, respectively, and are in full force and effect. The Company and
its Subsidiaries have not done or omitted to do or allowed any third party to
do or not to do anything which might render any of those policies void or
voidable and have complied with all conditions attached to them.
No material claim under any policy of insurance taken out in connection
with the assets of the Company and of its Subsidiaries is outstanding and there
are no circumstances likely to give rise to such a claim.
Section 2.2.10 Industrial Property Rights and License Agreements. The
Company and its Subsidiaries have full legal title and are the exclusive owners
of the trademarks, patents for inventions, "know-how" and other intellectual
and industrial property rights specified in Schedule 2.2.10 hereto, and with
respect to such rights the Company and its Subsidiaries have duly and promptly
provided
24
for payment of all the taxes due, if any. All such rights are valid and
existing and none of the same is subject to revocation.
None of the operations carried on by the Company and its Subsidiaries
infringes any right of another person in respect of any intellectual property
rights or will or may give rise to payment by the Company of any royalty or of
any sum in the nature of a royalty or to any liability to pay compensation
pursuant to any applicable legislation, nor have any claims or objections
concerning the free use and ownership of such rights by the Company been made
by any third parties.
Apart from the rights referred to above, the Company and its
Subsidiaries do not own, or make use of, in the course of their business, any
trademarks, patents for inventions, "know-how" or other intellectual or
industrial property rights in general.
The Company and its Subsidiaries are not party to any license
agreements or agreements of a like nature in relation to their business under
which they have granted or obtained the right to use patents for inventions,
trade marks, "know-how" or other intellectual or industrial property rights.
The Company or its Subsidiaries have not either disclosed or permitted or
undertaken or arranged to disclose to any person any of their know-how,
secrets, confidential information or lists of customers or suppliers.
The Company and its Subsidiaries have full and undisputed title, as
owner or licensee, to all trademarks, patents for inventions, "know-how" and
other intellectual and industrial property rights which are necessary to enable
them to carry on their business.
Section 2.2.11 Employees. The persons who, at the date of this
Agreement, are employed by the Company and its Subsidiaries are solely and
exclusively those listed by name, with indication of the relative category into
which they are placed, in Schedule 2.2.11 hereto (all the aforesaid persons are
hereinafter referred to as the "Employees"). The functions actually performed
by each of the Employees correspond to the category specified in Schedule
2.2.11.
The Employees have been duly remunerated for all the services performed
in the course of their working relationship with the Company and its
Subsidiaries in compliance with the applicable provisions of law and relative
labour contracts and all other payments due to them (whether in their capacity
as employees or otherwise) have been made
25
and, with respect to any such amounts or rights which have matured in
favour of the Employees but which are not yet payable, funds sufficient to
cover the relative payments have been provided for in accordance with the
German Generally Accepted Accounting Principles. With respect to the
remuneration paid to the Employees, all Contributions have been made relating
to compulsory health insurance and social security and to the tax withholdings
laid down by law. No liability has been incurred by the Company or its
subsidiaries for breach of any contract of service or for services, or for any
other liability accruing from the termination of any contract of employment or
for services.
The overall package of remuneration and other benefits due to each
Employee and the relative categories into which they are placed are those set
forth in Schedule 2.2.11 hereto and there are no other forms of remuneration or
benefits or particular treatments (including, without limitation, special
incentive schemes) agreed, in addition to those set forth.
The conditions of employment applicable and actually applied to the
Employees are solely those provided for by law and by the provisions of the
applicable collective labour contracts. No special conditions of employment
exist, of a collective or individual nature, which provide for the regulation
of the relationship with the Employees or with any of them in a manner other
than that of the provisions referred to above.
There is no agreement or understanding (contractual or otherwise)
between the Company or any of its Subsidiaries and any Employee or ex-employee,
manager or former manager with respect to his employment or office, his ceasing
to be employed, termination of his office or his retirement of his employment
or appointment and more generally there is no agreement or understanding
(contractual or otherwise) between the Company and any Employee or ex-employee
with respect to his employment, his ceasing to be employed or his retirement
which is more favorable than the provisions set out in the applicable
collective labour contract.
Section 2.2.12 Full Disclosure. No representation or warranty of the
Company or KBG in this Agreement nor any statement in any other document
referred to herein contains any untrue statement of a material fact, or omits
to state a material fact necessary to make the statements contained herein or
therein not misleading.
26
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF KBG,
THE COMPANY AND BTZ
KBG, the Company and BTZ each severally hereby represent and
warrant to WABASH, as follows:
Section 3.1 Authority. Each of KBG, the Company and BTZ, as the case
may be, has taken all action necessary and has given and obtained all
required authorizations and approvals and has all necessary power,
corporate and otherwise, and authority to enter into this Agreement, to
perform its obligations hereunder and to consummate the transactions
contemplated hereby. The execution and delivery of this Agreement by each
of KBG, the Company and BTZ, as the case may be, of its obligations
hereunder and the consummation by each of KBG, the Company and BTZ, as
the case may be, of the transactions contemplated hereby have been duly
authorized by all requisite action on the part of each of KBG, the
Company and ETZ, as the case may be. This Agreement constitutes a legal,
valid and binding agreement of KBG, the Company and BTZ, as the case may
be, enforceable against each of KBG, the Company and BTZ, as the case may
be, in accordance with its terms.
Section 3.2 No Conflict. The execution and delivery of this
Agreement by each of KBG, the Company and BTZ, as the case may be, do
not, and the performance by each of KBG, the Company and BTZ, as the case
may be, of its obligations hereunder and the consummation by each of KBG,
the Company and BTZ, as the case may be, of the transactions contemplated
hereby will not, (i) conflict with or result in the violation of any law,
regulation, governmental or court order, judgment or decree applicable to
KBG, the Company or BTZ, as the case may be, or (ii) conflict with or
result in any breach of any contract, agreement, license, permit,
franchise, concession or other instrument to which KBG, the Company or
BTZ, as the case may be, is a party or by which it is bound, other than
any such conflicts or breaches that, individually or in the aggregate,
would not have a material and adverse effect on each of KBG's, the
Company's or BTZ's, ability, as the case may be, to consummate the
transactions contemplated hereby or to perform its obligations hereunder.
Section 3.3 Governmental Consents and Approvals. The execution and
delivery of this Agreement by each if KBG, the Company and BTZ, as the
case may be, does not, and the performance by each of KBG, the Company
and BTZ, as the case may be, of its obligations hereunder and the
consummation by KBG, the Company and BTZ, as the case may be, of the
transac-
27
tions contemplated hereby will not, require any consent, approval,
authorization, license, permit or order of, action by, filing with or
notification to any court or governmental, regulatory or administrative
authority.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF WABASH
WABASH hereby represents and warrants to KBG and the Company, as
follows:
Section 4.1 Organization and Authority. WABASH is a corporation duly
organized and validly existing under the laws of Delaware, USA. WABASH has all
necessary power, corporate and otherwise, and authority to enter into this
Agreement, to perform its obligations hereunder and to consummate the
transactions contemplated hereby. The execution and delivery of this Agreement
by WABASH, the performance by WABASH of its obligations hereunder and the
consummation by WABASH of the transactions contemplated hereby have been duly
authorized by all requisite action on the part of WABASH. This Agreement
constitutes a legal, valid and binding agreement of WABASH enforceable against
WABASH in accordance with its terms.
Section 4.2 No Conflict. The execution and delivery of this Agreement
by WABASH do not, and the performance by WABASH of its obligations hereunder
and the consummation by WABASH of the transactions contemplated hereby will
not, (i) conflict with or result in the violation of the Articles of
Association and By-laws of WABASH or any law, regulation, governmental or court
order, judgment or decree applicable to WABASH, or (ii) conflict with, result
in any violation of or default (with or without notice or lapse of time or
both) under, or give rise to any right of termination, cancellation or
acceleration of any right or obligation or to a loss of any benefit under, any
contract, agreement, license, permit, franchise, concession or other instrument
to which WABASH is a party or by which it is bound, other than any such
conflicts, violations or defaults that, individually or in the aggregate, would
not have a material and adverse effect on the ability of WABASH to consummate
the transactions contemplated hereby or to perform its obligations hereunder.
Section 4.3 Governmental Consents and Approvals. The execution and
delivery of this Agreement by WABASH, the performance by WABASH of its
obligations hereunder and the consummation by WABASH of the transactions
contemplated hereby do not and will not require any consent, approval,
28
authorization, license, permit or other order of, action by, filing
with or notification to any court or governmental, regulatory or administrative
authority.
ARTICLE V
ADDITIONAL COVENANTS AND AGREEMENTS
Section 5.1 Financing. The Nominal Issue Price to be received by the
Company as of the date hereof shall be, without any limitations and without any
right of rentention or offset, to the free disposition of the managing
directors ("Geschaftsfuhrer") of the Company.
The Surplus Issue Price to be ultimately received by the Company
pursuant to the provisions of this Agreement shall be paid by WABASH on the
date hereof to the Joint KBG/WABASH Account specified in Section 1.2 above and
shall be distributed and available to the Company (without any right of
retention or offset) in installments as described as follows:
The funds of the Surplus Issue Price on the Joint KBG/WABASH Account
shall be disbursed to the Company upon request by the Supervisory Board of the
Company, such request to be subject to a 75% majority resolution of the
Supervisory Board, in accordance with the cash needs of the Company as
reasonably determined by the management of the Company, provided, however,
that, unless otherwise resolved by an unanimous resolution of the Supervisory
Board, (i) 50% of the funds of the Surplus Issue Price on the Joint KBG/WABASH
Account shall be disbursed to the Company no later than June 30, 1998, and (ii)
the remaining 50% of the funds of the Surplus Issue Price on the Joint
KBG/WABASH Account shall be disbursed to the Company no later than December 31,
1998. KBG and WABASH shall be entitled to any interest for the Surplus Issue
Price accrued on the Joint KBG/WABASH Account which shall be equally divided
between KBG and WABASH in the ratio 50:50.
Section 5.2. Condition Precedent. The obligations of WABASH to
subscribe for the Share Quota and to consummate the contemplated transactions
as described herein is subject to (i) the execution of the Shareholders
Agreement and (ii) the conversion of (x) KBG's claims in the amount of DM
9,000,000 against the Company pursuant to the provisions of KBG's partnership
agreement with the Company into capital reserves of the Company by duly
effected shareholder resolution; and (y) the principal amount of the loan of DM
4,000,000 given by KBG to the Company into capital reserves
29
of the Company by duly effected shareholder resolution.
ARTICLE VI
INDEMNIFICATION
Section 6.1. WABASH hereby agrees to indemnify and hold harmless the
Company from and against any and all direct losses, claims, damages,
liabilities, costs and expenses which the Company may suffer, incur or become
subject to, insofar as such losses, claims, damages, liabilities, costs or
expenses arise out of or are based upon any material breach of any
representation, warranty, covenant or agreement of WABASH contained in this
Agreement or any document delivered in connection with this Agreement.
Section 6.2. The Company, KBG and BTZ hereby jointly and severally
agree to indemnify and hold fully harmless WABASH from and against any and all
direct losses, claims, damages, liabilities, costs and expenses which WABASH
may suffer, incur or become subject to, insofar as such losses, claims,
damages, liabilities, costs or expenses arise out of or are based upon any
material breach of any representation, warranty, covenant or agreement of the
Company, KBG or BTZ contained in this Agreement or any document delivered in
connection with this Agreement.
ARTICLE VII
ARBITRATION, GOVERNING LAW
Section 7.1 Arbitration. Any dispute, controversy or claim arising out
of, relating to or in connection with this Agreement or the breach, termination
or validity thereof ("Dispute") shall be finally settled by arbitration under
the Rules of Arbitration of the International Chamber of Commerce (the "ICC")
then in effect (the "Rules"), except as modified herein. The arbitration
proceedings shall be conducted, and the award shall be rendered in Paris,
France, in the English language. In the event of an arbitration involving only
two of the parties hereto, there shall be three arbitrators of whom each of the
claimant and the respondent shall select one in accordance with the Rules. The
claimant shall name its arbitrator in its notice of arbitration which shall
also include its statement of claim. The respondent shall name its arbitrator
in its statement of defense which it shall deliver to claimant within thirty
(30) days of claimant's notice of arbitration and statement of claim. The two
arbitrators so appointed shall select a third arbitrator to serve as
30
presiding arbitrator, such selection to be made within thirty (30) days
of the selection of the selection second arbitrator. If any arbitrator has not
been appointed within the time limits specified herein and in the Rules, such
appointment shall be made by the International Court of Arbitration of the ICC
upon the written request of either the claimant or respondent within thirty
(30) days of such request. In the event of an arbitration involving more than
two parties hereto, there shall be three arbitrators who shall be jointly
nominated by the parties. If the parties fail so to nominate the arbitrators
within thirty (30) days from the date when the claimant(s)' notice of
arbitration is communicated to the respondents, at the request of any party the
arbitrators shall be appointed by the International Court of Arbitration of the
ICC within thirty (30) days of such request. The arbitral tribunal shall have
the authority to award any remedy or relief proposed by the claimant(s) or
respondent(s) pursuant to this Agreement, including without limitation,
specific performance of any obligation created under this Agreement. The
Parties hereby waive any rights of application or appeal to any court or
tribunal of competent jurisdiction to the fullest extent permitted by law in
connection with any question of law arising in the course of the arbitration or
with respect to any award made except for actions relating to enforcement of
the arbitration agreement or an arbitral award. By agreeing to arbitration, the
Parties do not intend to deprive any court of its jurisdiction to issue a
pre-arbitral injunction, pre-arbitral attachment or other order in aid of
arbitration proceedings and the enforcement of any award. The award shall be
final and binding upon the Parties, and shall be the sole and exclusive remedy
between the Parties regarding any claims, counterclaims, issues, or accounting
presented to the arbitral tribunal. Judgment upon any award may be entered in
any court having jurisdiction thereof. The Parties recognize and acknowledge
that this Agreement constitutes a commercial transaction, and to the extent
that any Party hereto may be entitled, in any jurisdiction, to claim for itself
or its revenues, assets or properties, sovereign immunity from service of
process, from suit, from the jurisdiction of any arbitral tribunal or any
court, from attachment prior to judgment, from attachment in aid of execution
of an arbitral award (interlocutory or final), or from any other legal process,
and to the extent that, in any such jurisdiction there may be attributed such a
sovereign immunity, each Party hereto hereby irrevocably agrees not to claim,
and hereby irrevocably waives, such sovereign immunity.
Section 7.2 Governing Law. This Agreement shall be governed by and
interpreted in accordance with the laws of Germany without giving effect to its
rules on conflict of laws.
31
ARTICLE VIII
MISCELLANEOUS
Section 8.1 Expenses. All expenses of KBG, WABASH, the Company and BTZ
in connection with this Agreement, the transactions contemplated hereby and the
respective obligations of the Parties hereunder, shall be paid by the party
incurring such expense, except to the extent that notarization fees for this
Agreement and the Shareholders Agreement and all other notarial fees and
related expenses necessary to contemplate the transactions described herein and
therein shall be borne by WABASH and KBG in the ratio 50:50. The Parties,
however, acknowledge and agree that notarization fees related to the increase
of the Company's nominal share capital shall be borne by the Company.
Section 8.2 Notices; Documents. (a) All notices and other
communications under this Agreement shall be in writing in the English language
and shall be given or made (and shall be deemed to have been duly given or
made) by delivery in person, by overnight courier service, by telecopy or by
registered or certified mail (postage prepaid, return receipt requested) to the
respective Parties at the following addresses (or at such other address for a
Party as shall be specified in a notice given in accordance with this Section
8.2):
if to KBG:
Bayerische
Kapitalbeteiligungsgesellschaft mbh
▇▇▇▇▇▇▇▇▇▇ ▇
▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇
Tel: ▇▇▇ ▇▇ ▇▇ ▇▇ ▇▇ ▇▇
Fax: ▇▇▇ ▇▇ ▇▇ ▇▇ ▇▇ ▇▇
Attention: Gechaftaleitung
if to WABASH:
WABASH National Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ Tel: ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Fax: ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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if to the Company:
ETZ Europaische Trailerzug
Beteiligungsgesellschaft mbH
▇▇▇▇▇▇▇▇▇▇▇ ▇
▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇
Tel: ▇▇▇ ▇▇ ▇▇ ▇▇ ▇▇ ▇▇
Fax: ▇▇▇ ▇▇ ▇▇ ▇▇ ▇▇ ▇▇
Attention: Geschaftsleitung
if to BTZ:
BTZ Bayerische Trailerzug Gesellschaft fur
bimodalen Guterverkehr mbH
▇▇▇▇▇▇▇▇▇▇▇ ▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Tel: ▇▇▇ ▇▇ ▇▇ ▇▇ ▇▇ ▇▇
Fax: ▇▇▇ ▇▇ ▇▇ ▇▇ ▇▇ ▇▇
Attention: Geschaftsleitung
(b) All documents and other instruments to be delivered under this
Agreement, shall be in the English language or, if the original language
thereof is not the English language, shall be accompanied by an English
language translation thereof.
Section 8.3 Confidentiality. (a) Each Party shall treat confidentially
in accordance with the terms of this Section 8.3 all information provided to it
by or on behalf of any other Party relating to the business and operations of
such other Party and all correspondence among the Parties relating to this
Agreement or the transactions contemplated hereby, including the terms and
conditions hereof ("Confidential Information"). Confidential Information does
not include information (i) already available to the recipient party on a
non-confidential basis, (ii) that becomes generally available to the public
other than as a result of a disclosure by or on behalf of the recipient party
in violation of the terms of this Section 8.3, or (iii) that becomes available
to the recipient party on a non-confidential basis from a source that is not a
party hereto, provided that such source is not known by the recipient to be
legally prohibited from, or contractually bound not to, disclose such
information.
(b) Subject to Section 8.4, the Parties agree that
33
any Confidential Information received by it will not be disclosed by it
except (i) to such Party's advisors and counsel being subject to professional
duties of confidentiality also in favor of the other Parties, and having a need
to know such information in connection with advising or representing such Party
in respect of this Agreement and the matters contemplated herein, (ii) with the
prior written consent of the Party to whom such information pertains, (iii) in
connection with the exercise of its rights or remedies under or relating to
this Agreement, or (iv) as required by applicable law or competent judicial or
governmental authority or in accordance with the applicable rules of any stock
exchange; provided, however, that, in the event that any Party shall be
required to make any disclosure of confidential information as contemplated in
this clause (iv), it shall to the extent practicable (A) provide prior notice
thereof to the Party to whom such information pertains, (B) only disclose such
portions of Confidential Information as, in the opinion of its counsel, shall
be required to be disclosed under the circumstances and (C) request
confidential treatment for such disclosed information.
Section 8.4 Public Announcements. The Parties agree to consult with
each other before issuing any press release or otherwise making any public
statements with respect to the matters contemplated by this Agreement, and
shall not issue any such press release or make any such public statement prior
to such consultation or, after such consultation, if any Party is not
reasonably satisfied with the text of such release or statement, except as may
otherwise be required by applicable law.
Section 8.5 Headings. The descriptive headings contained in this
Agreement are for convenience of reference only and shall not affect in any way
the meaning or construction of any provision of this Agreement.
Section 8.6 Severability. If any provision of this Agreement should be
invalid or ineffective, the validity of the remaining provisions hereof shall
not be affected thereby. The invalid or ineffective provisions shall be deemed
to be replaced by such valid and effective provision as most closely
corresponds to the economic purpose and substantive effect of the invalid or
ineffective provision and the original intention of the Parties. The same
applies mutatis mutandis with regard to the supplementary interpretation of the
Agreement.
Section 8.7 Entire Agreement; No Third Party Beneficiaries. This
Agreement (including the documents and instruments referred to herein)
constitutes the entire
34
agreement between the Parties with respect to the subject matter hereof
and supersedes all prior agreements and undertakings, both written and oral,
between the Parties with respect to the subject matter hereof. This Agreement
is for the sole benefit of the Parties and their permitted assigns and nothing
herein express or implied shall give to any other person any legal or equitable
rights hereunder.
Section 8.8 Amendments and Waivers. This Agreement may not be amended,
and none of its terms or provisions may be modified, except expressly by an
instrument in writing signed by the Parties. Any term or provision of this
Agreement may be waived, but only in writing by the Party that is entitled to
the benefit of such term or provision. No waiver by any Party of any provision
of this Agreement shall be deemed to be a waiver of any other provision hereof.
Section 8.9 Assignment. Except as expressly provided in this Agreement,
neither this Agreement nor any of the rights, interests or obligations
hereunder shall be assigned by any of the Parties without the prior written
consent of the other Parties, and any such purported assignment shall be void
and of no effect.
35
TABLE OF CONTENTS
ARTICLE I. AUTHORIZATION, SUBSCRIPTION, PURCHASE AND SALE OF SHARE QUOTA
Section 1.1 ................................Capital Increase
Section 1.2 .......... Issuance of New Share Quota to WABASH
ARTICLE II. REPRESENTATIONS AND WARRANTIES OF KBG AND THE
Section 2.1.1 ....................... Corporate Organization
................................. and Qualification
Section 2.1.2 ........................... Authorized Capital
Section 2.1.3 .............................. New Share Quota
Section 2.1.4 .......................... Corporate Authority
Section 2.1.5 .................................. No Conflict
Section 2.1.6 ...........Governmental Consents and Approvals
Section 2.2.1 ........................ Financial Information
Section 2.2.2 ................... No Undisclosed Liabilities
Section 2.2.3 .............. Conduct in the Ordinary Course;
........................ No Material Adverse Change
Section 2.2.4 ....................... Actions or Proceedings
Section 2.2.5 ................ Compliance with Laws; Permits
Section 2.2.6 ........................... Material Contracts
Section 2.2.7 ........................................ Taxes
Section 2.2.8 .................... Title and Related Matters
Section 2.2.9 .................................... Insurance
Section 2.2.10 ................. Industrial Property Rights
................................ and License Agreements
Section 2.2.11 ................................... Employees
Section 2.2.12 ..............................Full Disclosure
ARTICLE III. REPRESENTATIONS AND WARRANTIES OF KBG, THE ..
Section 3.1 ...................................... Authority
Section 3.2 .................................... No Conflict
Section 3.3 ............ Governmental Consents and Approvals
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF WABASH
Section 4.1 ..................... Organization and Authority
Section 4.2 .................................... No Conflict
Section 4.3 ............ Governmental Consents and Approvals
ARTICLE V. ADDITIONAL COVENANTS AND AGREEMENTS
Section 5.1 ....................................... Financing
36
Section 5.2 ............................ Condition Precedent
ARTICLE VI. INDEMNIFICATION
ARTICLE VII. ARBITRATION, GOVERNING LAW
Section 7.1 .................................... Arbitration
Section 7.2 ................................... Governing Law
ARTICLE VIII. MISCELLANEOUS
Section 8.1 Expenses
Section 8.2 Notices; Documents
Section 8.3 Confidentiality
Section 8.4 Public Announcements
Section 8.5 Headings
Section 8.6 Severability
Section 8.7 Entire Agreement;
No Third Party Beneficiaries
Section 8.8 Amendments and Waivers
Section 8.9 Assignment
